Complications

I have recently seen, in several libertarian publications, criticisms of
two prominent libertarian intellectuals, Robert Nozick and Jennifer Roback, who
are accused of holding "unlibertarian" positions. Professor Nozick is reported
to have said that it might be appropriate to forcibly restrain a suicide, and
Professor Roback that under some circumstances she would be in favor of a
draft.

Th essay is not a defense of the views of Professors Nozick and Roback. I
do not know whether they said what they are reported to have said, nor if so
what arguments they would give for their positions; in any case, both are fully
capable of defending themselves. My purpose is rather to attack the view that
the implications of libertarian ideas are so clear and unambiguous that the
appropriate response, when intelligent libertarian thinkers make the sort of
statements Nozick and Roback are alleged to have made, is to accuse of them of
heresy instead of examining their arguments to see if perhaps they are
correct.

In order to do so, I will myself defend an assertion even more outrageous
than the one Professor Roback is alleged to have made--indeed, one of which
hers is a special case. The assertion is that in some circumstances I am in
favor of the occurence of immoral acts--or, to put the argument in a form
better calculated to offend my fellow libertarians, that under some
circumstances I am in favor of coercion.

Consider the following example. A madman is about to open fire on a crowd;
if he does so numerous innocent people will die. The only way to prevent him is
to shoot him with a rifle which is within reach of several members of the
crowd. The rifle is on the private property of its legitimate owner. He is a
well known misanthrope, who has publicly stated on numerous occasions that he
is opposed to letting anyone use his rifle without his permission, even if it
would save hundreds of lives.

Two questions now arise. The first is whether members of the crowd have a
right to take the rifle and use it to shoot the madman. The answer of
libertarian rights theory, as I understand it, is no. The owner of the rifle is
not responsible for the existence of the madman, and the fact that his rifle
is, temporarily, of enormous value to other people does not give them a right
to take it.

The second question is whether it is desirable that the members of the
crowd take the rifle and use it to shoot the madman--whether, to put it more
personally, I "wish" that they do so, or whether I wish that they stand there
and be shot down. The answer to this question seems equally unambiguous. If
they take the rifle, there is a relatively minor violation of the legitimate
rights of its owner; if they do not, there is a major violation of the
legitimate rights (not to be killed) of a large number of victims--plus a
substantial cost in human life and human pain. If asked which of these outcomes
I would prefer to see, the answer is obviously the first.

This result is not, in any strict sense, paradoxical. One may believe that
a certain outcome is desirable but that there is no morally legitimate way of
achieving it. Indeed, this possibility is implied by the idea (due to Nozick)
of viewing libertarian rights as "side constraints" within which we seek to
achieve some objective; the constraints would be irrelevant unless there were
some circumstances in which we could better achieve the objective by ignoring
them.

While not in any strict sense paradoxical, the result is, at least to me,
an uncomfortable one. It puts me in the position of saying that I very much
hope someone grabs the gun, but that I disapprove of whoever does so.

One way in which some libertarians might try to avoid the problem is by
disagreeing with my interpretation of natural rights, and claiming that the
potential victims have the right to commit a minor rights violation,
compensating the owner of the gun afterwards to the best of their ability, in
order to prevent a major one. Another way is by claiming that the situation I
have described cannot occur, that there is some natural law according to which
rights violations always have bad consequences, and that the decision to commit
a rights violation can never decrease the total of rights violation. Another
out is to claim that natural rights are convenient rules of thumb which
correctly describe how one should act under most circumstances, but that in
sufficiently unusual situations one must abandon the general rule and make
decisions in terms of the ultimate objectives which the rule was intended to
achieve.

All of these positions, as well as my own, lead to the same conclusion.
Under some circumstances rights violations must be evaluated on their merits,
rather than rejected a priori on conventional libertarian natural rights
grounds. Those who believe that rights violations "never pay" will, of course,
be sure that the result of the evaluation will be to reject the violation. That
does not mean that they can reject arguments to the contrary a priori;
from their standpoint any such argument claims to provide a counterexample to
their general theorem, and if one such counterexample is true the general
theorem must be false.

I have made my point in terms of a hypothetical situation in order to
confine the argument to the question of principle and avoid the disputes about
facts which the discussion of any particular real world situation involves. I
will now carry the argument a step futher by defending the particular heresy
which Jennifer Roback is accused of uttering--that under some conceivable
circumstances a draft would be desirable.

Suppose we are threatened with military conquest by a particularly vicious
totalitarian government; if the conquest is successful we will all lose most of
our freedom, and many of us will lose our lives. It is claimed that only a
draft can protect us. Two replies are possible. The first is that even if it is
true, coercion is always wrong, hence we should reject the draft. I have tried
to show that that sort of answer is not satisfactory--at the most it should
lead us to refuse to enforce a draft ourselves, while hoping that someone else
with fewer principles imposes one for us. Temporary slavery is, after all,
better than permanent slavery.

The other possible reply is to deny that the draft is necessary. This can
be done in many ways. The economist is inclined to argue that collecting taxes
in cash and using them to hire soldiers is always more efficient than
collecting taxes in labor; the moralist is likely to claim that a society whose
members will not voluntarily defend it is not worth defending. I have myself
used the first argument many times; I believe that in the particular
circumstances presently facing the U.S. it is correct. But the question I am
currently concerned with is not whether under present circumstances, or even
under likely circumstances, a draft is desirable. The question is whether under
any conceivable circumstances it could be.

The answer I am afraid is yes. One can imagine a situation in which the
chance of a soldier being killed is sufficiently high, and the effect of a
single soldier on the outcome of the battle sufficiently low, so that a
rational individual, concerned chiefly with his own welfare, will refuse to
volunteer even at a very high wage. One can further imagine that the percentage
of the population required to defeat the enemy is so large that there are
simply not enough patriotic, or altruistic, or adventure loving, or
unreasonably optimistic recruits available; in order to win the war it is
necessary that the army also include selfish individuals with a realistic view
of the costs and benefits to them of joining the army. Recruiters, and
preachers, will of course point out to such individuals that "if everyone
refuses to fight we will be conquered and you will be worse off than if
everyone volunteers to fight." The individual will reply, correctly, that what
he does does not determine what everyone else does. If everyone else
volunteers, he can stay safe at home; if nobody else volunteers and he does, he
will almost certainly be killed, and if not killed will be enslaved.

One could, under such circumstances, recruit an army without a draft by
paying very high salaries and financing them with taxes so high that anyone who
does not volunteer starves to death. Under those circumstances, the coercion of
a tax is indistinguishable from the coercion of a draft. While a libertarian
may well argue that to impose either a draft or a tax is immoral, and that he
himself would refuse to do so, I find it hard to see how one can deny that,
under the circumstances I have hypothesized, he would rather see himself and
everyone else temporarily enslaved by his own government than permanently
enslaved by someone else's.

The point of this argument is not that we should have a draft. As it
happens, I not only believe that under present circumstances a draft is a bad
thing, I also believe that if the government has the power to impose a draft it
is very much more likely that it will use it when it should not than that the
rather unlikely circumstances I have described will occur. My purpose is rather
to convince you that libertarianism is not a collection of straightforward and
unambiguous arguments establishing with certainty a set of unquestionable
propositions. It is rather the attempt to apply certain economic and ethical
insights to a very complicated world; the more carefully one does so, the more
complications one is likely to discover, and the more qualifications one must
put on one's results.

It follows, I think, that when fellow libertarians come up with results
different than mine, my response should be to look at their arguments, not
start a witch hunt. They may be right.

I have now put myself in exactly the position which Jennifer Roback is
accused of occupying; I have argued that under some conceivable circumstances a
draft is desirable. I expect to see outraged comments in various periodicals,
asserting that this proves (as some have long suspected) that I am not really a
libertarian. Since I do not believe that being a libertarian requires the
elevation of faith above reason, I will be more interested in seeing answers to
my arguments.